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Immigrants’ case against ICE, DHS can proceed, judge rules

Judge Mark Wolf’s decision rejected the government’s argument that the case should be dismissed because the federal district court has no jurisdiction over deportation decisions made by Immigration and Customs Enforcement.David L. Ryan/Globe Staff/File 2011

A lawsuit by immigrants trying to keep immigration officials from deporting them while they seek legal residency may move forward, a federal judge ruled Thursday.

Judge Mark Wolf’s decision rejected the government’s argument that the case should be dismissed because the federal district court has no jurisdiction over deportation decisions made by Immigration and Customs Enforcement.

Wolf said that by law, ICE cannot deport people with a final order of removal without considering their eligibility for a provisional waiver that would allow them to stay in the country while their applications for legal residency are pending.


“I find it plausible that if this case is dismissed ICE will deny petitioners’ future requests for stays of removal and execute their removal orders,” he said.

Wolf spent about 90 minutes rendering his decision, which echoed his May ruling in the same case that ICE had unlawfully detained two of the immigrants in the lawsuit after they were arrested at government offices following scheduled interviews. He made that ruling on the basis that ICE had violated its own regulations by failing to give the immigrants sufficient notice to fight their detentions.

That same month, he ordered ICE not to arrest and detain the immigrants while the lawsuit is pending.

District courts have been stripped of much of their power to intervene in removal proceedings, but federal judges have ruled that they can act if there is a reasonable claim that an immigrant’s due process rights were violated by a federal agency.

“The due process clause protects the liberty interests of all people in the United States, including aliens regardless whether their presence is lawful or unlawful, temporary or permanent,” Wolf said.

Wolf cited the regulations stipulated by the Department of Homeland Security that extended provisional waivers to people with final orders of removal in 2016. The idea behind the waivers was to prevent the emotional and financial harm that would follow the separation of spouses and families, Wolf said.


If ICE failed to consider those regulations when it moved to deport the immigrants in this case, that would be a violation of those regulations and, in effect, of US law, Wolf said.

“The binding promise [of the regulations] to the United States citizens and their alien spouses would be meaningless and their purpose would be undermined if ICE was not required to consider that an alien with a final order of removal was seeking a provisional waiver” when moving to deport an immigrant,” Wolf said. “The law doesn’t permit ICE to remove somebody solely because there is a final order of removal.”

The lawsuit asks Wolf to order ICE not to arrest and detain immigrants seeking legal residency through their American relatives, specifically those who may qualify for the provisional waivers put in place by the Department of Homeland Security.

The case has cast attention on the aggressive tactics of ICE under the Trump administration, which has prioritized the removal of all unauthorized immigrants, even those who have committed no other crime besides entering the country illegally.

On Aug. 14, lawyers for the immigrants submitted e-mails between ICE and US Customs and Immigration Services, the agency that processes residency and citizenship, that showed the two agencies were communicating with each other about visits from immigrants with final orders of removal.


Those immigrants would arrive for meetings scheduled by immigration officials, who then told ICE when to arrive so they could arrest them. In some cases, the immigrants were arrested after they were told they had been approved for an I-130, the first step for an immigrant trying to seek legal residency through an American relative.

Wolf stopped short of saying ICE had violated the law, but he said the evidence presented so far “certainly reinforces the conclusion that the [immigrants’] claim is plausible.”

Wolf still has to rule on the immigrants’ request for an injunction against ICE. The immigrants are being represented by lawyers for the Massachusetts American Civil Liberties Union and WilmerHale, who are also trying to certify a class action so that any immigrants in New England under similar circumstances can be included in the complaint.

In a statement Thursday, the ACLU said the decision gives hope to “families that the Trump administration is trying to tear apart.”

“The Trump administration is relentlessly trying to detain and deport many immigrants as possible, no matter the costs to family unity and civil rights,” the statement read. “Today, we tell the Trump administration, again: we’ll see you in court.”

John Mohan, a spokesman for ICE, declined in an e-mail to comment on Wolf’s decision.

“Since the ruling in this case means that the litigation will remain ongoing, the agency does not have anything to say at this point, as we don’t comment on active, ongoing litigation,” he said.


Nancy Gertner, a retired federal judge, said Wolf’s decision to continue the case could have ripple effects on similar cases outside Massachusetts.

“When a respected judge takes this action, other judges will pay attention,” she said. “The immigration lawyer community will certainly take this case and cite it from one end of the country to the other. . . . One district court doesn’t bind another, but it is an example of a judge intervening on due process grounds.”

Maria Cramer can be reached at mcramer@globe.com. Follow her on Twitter @globemcramer.